Blood splatter series: (Part 1): Joe Bryan: Texas: Controversial blood splatter case: Waco Tribune-Herald columnist Bill Whitaker describes how flawed forensics and courtroom bungling took center stage in Joe Bryant's recent hearing: "Mere feet from a pale, nearly immobile figure in black and white prison stripes convicted on that long-ago evidence, Rossi forcefully punctuated her thoughts on the trial transcript: “It’s false and unscientific and it’s the most horrifying thing I’ve ever read in my life.” This is all at the heart of the long-running, much-debated saga of onetime Clifton High School principal Joe Bryan, now 77 and ailing, in prison more than three decades for a murder some argue the criminal justice system bungled through a series of wildly irregular factors, some involving hard science, some involving basic legal ethics. Although two juries in trials in 1986 and 1989 found Bryan guilty of murdering his wife in a breathless prosecutorial narrative conjuring some amazing logistical feats, others say he’s a prime example of chronic failures in America’s criminal justice system."

PASSAGE OF THE DAY: "Asked to examine the Bryan case blood-spatter evidence by the Texas Forensic Science Commission, Celestina Rossi was clearly the star witness at last week’s hearing, doggedly questioning not only the severely limited, 40-hour training of former police detective Robert Thorman, the bloodstain-pattern analyst tapped by prosecutors during the two trials, but even more so the validity of his findings. These included conclusions that, she charged, simply don’t support the narrative of a killer leveling the flashlight at Mickey Blue Bryan as she was shot — key evidence. On cross-examination by mild-mannered District Attorney Sibley, Rossi not only refused to be drawn into hypotheses that required her to offer opinions on subjects and evidence in which she wasn’t experienced — the very sin for which she blamed Thorman — but she further drove home the point that, judging from trial transcripts, Thorman wasn’t properly cross-examined by Bryan’s own defense attorneys during the murder trials: “I don’t think either side understood the testimony that was given.”

COMMENTARY: "Bill Whitaker: Flawed forensics, courtroom bungling take center stage in Joe Bryan hearing," by Bill Whitaker, Opinion Editor, published by The Waco Tribune-Herald  on August 25, 2018.

GIST: "Spend several hours in a courtroom listening to people debate and argue particulars about bloodstain patterns and you’ll likely come to some conclusions. First, despite the gruesome fact this involves how blood sprays out of people who have been shot, stabbed and beaten and how it splatters on various nearby objects, the subject can nonetheless be mind-numbingly tedious. Second, as a narrow but highly developed science, it can tell you certain things about a murder victim’s death; other facts it can never fully reveal. And, finally, as I learned during a three-day evidentiary hearing in which attorneys and experts sparred over a murder case that happened more than a generation ago, two experts in the science of bloodstain patterns can disagree politely with each other about particulars. But if a third strolls into the debate, literally or figuratively, without contemporary and extensive training, the first two experts will agree on at least one thing: The third almost certainly has no idea what he’s talking about. All of this transpired at the aforementioned hearing last week when Celestina Rossi, veteran bloodstain-pattern analyst from the Montgomery County Sheriff’s Office crime lab, repeatedly questioned decades-old testimony about blood spatter in two high-profile Central Texas murder trials involving one defendant. Mere feet from a pale, nearly immobile figure in black and white prison stripes convicted on that long-ago evidence, Rossi forcefully punctuated her thoughts on the trial transcript: “It’s false and unscientific and it’s the most horrifying thing I’ve ever read in my life.” This is all at the heart of the long-running, much-debated saga of onetime Clifton High School principal Joe Bryan, now 77 and ailing, in prison more than three decades for a murder some argue the criminal justice system bungled through a series of wildly irregular factors, some involving hard science, some involving basic legal ethics. Although two juries in trials in 1986 and 1989 found Bryan guilty of murdering his wife in a breathless prosecutorial narrative conjuring some amazing logistical feats, others say he’s a prime example of chronic failures in America’s criminal justice system. Last week’s evidentiary hearing in the Comanche County Courthouse saw Waco-based criminal defense attorneys Jessica Freud and Walter “Skip” Reaves Jr. parade forth witnesses before Senior Judge Doug Shaver to make the case that Bryan deserves at least another trial. That left tall, lanky District Attorney Adam Sibley to follow through on his chosen, sometimes puzzling course: defending how the case was pressed and prosecuted in the 1980s involving a crime that occurred when, as Sibley noted with quiet irony, he was just 6 years old. The hearing followed last month’s pivotal Texas Forensic Science Commission meeting in Austin. Acting on a formal complaint by Reaves and Freud, the nine-member commission raised grave doubts about “expert” testimony introduced during the trials, especially a bloodstain-pattern analysis involving a “bloody flashlight” that, prosecutors back then suggested, had been held by the killer while shooting teacher Mickey Blue Bryan three times in the head and once in the abdomen at her home in the middle of the night. While Joe Bryan contended all along he was at an education conference in Austin at the time of his wife’s murder in Clifton on Oct. 15, 1985, prosecutors in 1986 and 1989 carried the day with an alternative story: Bryan had left the hotel in Austin under the cover of darkness (despite an eye condition that made night driving a challenge), drove back to Clifton (and through a rainstorm) to kill his wife in their bedroom, then cleaned up and returned to Austin, arriving in time for the next morning’s activities. Round trip: 262.8 miles. Some 60 people, many in their 60s, 70s and beyond, filled much of the second-floor courtroom last week, including Bryan relatives wearing red T-shirts that read “Justice for Joe.” During recess, many milled about on the first floor near an old, one-armed (but sighted) statue of Lady Justice that once topped the town courthouse. A paucity of press also attended, plus officials from the Innocence Project of Texas, a statewide organization that works to free the wrongfully convicted from Texas prisons and has championed this particular case. Also present: exonerated individuals from past criminal justice failures, such as Michael Morton, 64, convicted and sentenced to life in prison in 1987 for murdering his wife, only to be cleared in 2011 after DNA evidence revealed that someone else murdered his wife. Morton’s attorneys later learned the prosecutor in the case had withheld evidence that could have proven his innocence. As a result, Texas Gov. Rick Perry in 2013 signed the Michael Morton Act, which requires disclosure of all police reports and witness statements to defense attorneys. “The thing that hit me [about the Bryan case] was the reliance on the blood-spatter evidence,” Morton told me. “There’s good science and bad science, and I know they throw the term ‘junk science’ around a lot. But this reminds me a little bit of how our perspective on bite-mark evidence is changing. A guy named [Steven Mark] Chaney out of the Dallas area, his case got overturned [in 2015 after the scuttling of discredited bite-mark testimony used to convict him in a 1987 double-murder]. And surprise, surprise — I actually did time with him!” Asked to examine the Bryan case blood-spatter evidence by the Texas Forensic Science Commission, Celestina Rossi was clearly the star witness at last week’s hearing, doggedly questioning not only the severely limited, 40-hour training of former police detective Robert Thorman, the bloodstain-pattern analyst tapped by prosecutors during the two trials, but even more so the validity of his findings. These included conclusions that, she charged, simply don’t support the narrative of a killer leveling the flashlight at Mickey Blue Bryan as she was shot — key evidence. On cross-examination by mild-mannered District Attorney Sibley, Rossi not only refused to be drawn into hypotheses that required her to offer opinions on subjects and evidence in which she wasn’t experienced — the very sin for which she blamed Thorman — but she further drove home the point that, judging from trial transcripts, Thorman wasn’t properly cross-examined by Bryan’s own defense attorneys during the murder trials: “I don’t think either side understood the testimony that was given.”

Other key points raised in testimony during the evidentiary hearing: First, the district attorney in both trials relied on the services of a “special prosecutor” to assist in pressing for Bryan’s conviction — a prosecutor reportedly paid by the murder victim’s brother, Charlie Blue — a practice hardly unprecedented but rare and brimming with ethical questions regarding a prosecutor’s duty to the broader community. Second, Bryan’s attorneys failed to cite this damning irregularity in appealing the case. Former McLennan County prosecutor Alan Bennett, who practices criminal law and has lengthy experience as an appellate court staff attorney, on Wednesday cited “the huge appearance of impropriety” in this prosecutorial setup that could have swayed jurors. If then-District Attorney Andy McMullen had indeed found himself overburdened by the Bryan case and other cases in the judicial district, as DA Sibley suggests might have been the case, McMullen could have procured an independent prosecutor from the State Attorney General’s Office. Baylor Law School professor Brian Serr — who teaches advanced criminal law to students including, once upon a time, not only Sibley and Freud but also Sibley’s father, former Republican state Sen. David Sibley of Waco — stressed that the constitutional and ethical priority of any prosecutor is seeing justice done, even above prosecuting cases. He expressed strong reservations about a special prosecutor bankrolled by the murder victim’s family possibly undermining this pursuit of justice. He also battered a prosecution case he saw as weak. At times, the debate between Serr and Sibley seemed more an exchange between professor and student. At one point, when Sibley stressed that Professor Serr couldn’t truly know what standards the two prosecutors upheld in pressing their case against Joe Bryan years ago or the integrity of this team, Serr didn’t balk: “We know what the standards are supposed to be — pursuit of justice. Justice doesn’t mean my own personal sense of justice or ‘What am I going to do to avoid pressure from the community in solving this heinous crime?’ Pursuing justice means justice according to the rule of law. “The rule of law says you’re innocent unless there’s proof beyond a reasonable doubt. I can’t say [Joe Bryan is] innocent and I can’t say there’s no way he [couldn’t] have done it. But I’m having a very, very difficult time convincing myself there’s proof beyond a reasonable doubt. Personally, I believe there wasn’t. But again, juries are less able to make those judgments than prosecutors are. And that’s why prosecutors play such an important role right at the outset of cases in deciding whether a person should be prosecuted in the first place.”

During examination by Reaves, Serr said the spectacle of a family-paid special prosecutor in prominent attorney Garry Lewellen should have raised red flags: “I think there is a strong argument that the arrangement violated due process. It’s hard to weigh exactly how much influence Mr. Lewellen exercised on Mr. McMullen throughout the convictions. I would want to know a little more detail before giving a definitive answer to that. But certainly the values underlining the due process clause have been compromised.”  The long road back to the Comanche County Courthouse for Bryan — the second of his two trials was held there after a courtroom technicality nixed the first on appeal — has been a tortuous one. As investigative journalist Pamela Colloff has reported in a series of gripping, detailed stories on the Bryan saga for The New York Times Magazine and ProPublica, Bryan’s conviction hinged on more than questionable blood-spatter testimony and Charlie Blue’s involvement in producing evidence (notably the controversial flashlight) with a private investigator and paying for a special prosecutor known for his “junkyard-dog” tenacity (to quote Lewellen’s 2015 obituary) as an attorney. Colloff’s coverage — the sort imperiled as newspapers dwindle in size and resources — highlights subtle but unsubstantiated insinuations about Bryan’s sexuality, possibly based on a Chippendales pinup calendar that Bryan reportedly explained was a gag gift. Homosexuality, real or imagined, might render a convenient motive, however flimsy, in a marriage free of discord or financial problems. And certainly local law enforcement in 1985 needed to show some success in their duty: Small-town Clifton had been rocked not only by Mickey Blue Bryan’s murder but, a few months earlier, the then-unsolved rape and murder of 17-year-old Judy Whitley.

“I was floored by the testimony of Andy McMullen, the district attorney who prosecuted this case in 1986 and 1989,” Colloff said when I asked what struck her most about last week’s hearing. “He had not reviewed the record when he came to testify [Tuesday] and his testimony was quite evasive on a number of key points. What disturbed me the most was his failure to remember the Judy Whitley murder, which happened the same year as this case. He couldn’t remember the year that Joe Bryan was arrested for this crime. The totality of his testimony, I thought, showed a failure in the 1980s to this community to properly investigate two terrible murders. The Whitley family has been terribly served, I think, in the past, in the ’80s, by that office. That was really heartbreaking.” Indeed, McMullen’s testimony last week — stunningly sketchy where it shouldn’t have been, yet detailed in other matters — showed little sympathy for Joe Bryan’s situation, enough that one observer angrily described it to me as “selective amnesia.” Ironically, it may well have strengthened the case that Bryan was terribly wronged. Colloff became fascinated by controversies over bloodstain analysis and those forgotten criminal cases that often rely on them after she covered a trial in East Texas where two forensic experts reached very different conclusions. She decided to expand upon this forensic dynamic: “I saw that the Texas Forensic Science Commission, whose work I follow closely, was taking up two cases related to this, Joe Bryan’s being one of them. I was intrigued and read both cases. I think they were equally interesting. But because of his stature in the [Clifton] community, I was really interested in the Bryan case. At his first trial, 36 character witnesses turned out for him.” Casting further doubt on Joe Bryan’s guilty verdict: disturbing testimony about a former Clifton police officer who, three years after hanging himself in 1996, was determined by Clifton police to be Judy Whitley’s killer. Testimony last week strongly hinted he might have been responsible for Mickey Blue Bryan’s death as well. And there’s a cigarette butt found at the Bryan murder scene (reportedly neither of the Bryans smoked), at one point dismissed as accidentally left there by a justice of the peace — which, during last month’s Texas Forensic Science Commission meeting, prompted one aghast commissioner to comment: “Boy, that’s a good thing to do at the scene!” And then there are the wildly different conclusions regarding the so-called “bloody flashlight,” including testing that failed to determine if the specks on it are even blood, let alone Mickey Bryan’s blood. Last week’s evidentiary hearing recessed pending further lab results in the Bryan case. Whatever 82-year-old Judge Shaver decides in the long run — his recommendation will go to the Texas Court of Criminal Appeals for action — it’s obvious by now analysis of key evidence in the Bryan case was botched. Protocols in how the case was investigated and prosecuted should also rattle anyone concerned about the integrity of the judicial process, especially after the former DA’s testimony last week. Yet it’s also obvious that increasing scrutiny involving forensic science and Texas’ criminal justice system are now moving in the right direction. “Between the number of DNA exonerations that we had in the early 2000s and the Houston Police crime lab scandal [compromising hundreds of prosecution cases] — all this happened at the same time and the crime lab scandal in particular triggered creation by the Texas Legislature of the Texas Forensic Science Commission,” Colloff said. “So there were a lot of things going on in the early 2000s that put us at the forefront of things. I tell people all the time that Texas is a leader in criminal justice reform. They don’t believe me, but we are.” And while the Michael Morton Act demands more transparency by district attorneys in discovery evidence — the act was invoked often in Waco’s 54th State District Courtroom last year in the one and only Twin Peaks motorcycle brawl trial held thus far — Morton says further reforms must include to a greater degree the police: “The cops work for us. And they’ve got the hardest job of anybody. They have a tough job. But like prosecutors, they also have those temptations. How can you not be tempted to cut a corner or bend a rule when you know or think you know you’ve really got the bad guy but you just don’t quite have a case?” Even now, the Innocence Project of Texas is pursuing an ambitious project to determine just how many criminal cases exist in which convictions were in part or wholly dependent on the same minimal, 40-hour blood-pattern analysis standards used to convict Joe Bryan. And while state strides to impose far more rigorous forensic standards raise financial, personnel and logistical challenges for law enforcement agencies in small towns and sparsely settled counties, Texas Court of Criminal Appeals Justice Barbara Hervey acknowledged before the Texas Forensic Science Commission last month the dire need for improvement after hearing of flaws and failings in the Bryan case. “This is a huge state and, you’ve got to remember, it’s not just about little, local law enforcement people trying to go out to crime scenes,” the former prosecutor said. “A lot of this is done by [justices of the peace] going out to crime scenes who really aren’t experienced or knowledgeable or are interfering in some respects. I can understand and appreciate where [some law enforcement agencies] are coming from because it’s not just blood analysis back in the lab, it’s the crime scene. For me, in my court, if that crime scene’s not processed correctly, then the rest of us in the system have a huge problem.”"

The entire commentary can be found at:

https://www.wacotrib.com/opinion/columns/bill_whitaker/bill-whitaker-flawed-forensics-courtroom-bungling-take-center-stage-in/article_7c39b7cd-98b4-50bb-aaf9-3f82dba8d10d.html